ERAPPA Vs. SEETHAMMA

JUDGEMENT

(1.) This revision petition is directed against the order dated 3-11-1978 passed by the learned Civil Judge, Chickballapur in O. S. No. 31 of 1978 dismissing the application I. A.No. XII filed by the defendants for amendment of the written statement.

(2.) The brief facts of the case are as follws:-The respondent filed the suit for partition and possession of her share in the suit properties. The petitioners defendants have filed the written statement contending that some of the suit properties arp the self-acquired properties. They have stated in their written statement that item Nos. 1, 2 and 7 were, self acquired properties. Subsequently the defendants have, filed I.A.No. XII seeking amendment to their written statement so as to add a Plea that item Nos. 1,3,7,16,17,20,22,27,28 and 30 of the 'A' schedule, properties and the 'B' schedule properties are the self-acquired properties. By this amendment, they also further wanted to delete item No. 2 being one of the self-acquired properties. This application was opposed by the respondentplaintiff on the ground that the defendants are estopped from taking the plea as stated in their application on the g,round that they have admitted in their written statement that except items 1,2, and 7 of the suit schedule properties, other properties are joint family properties and therefore the amendment sought for should be rejected. In support of the amendment sought for by the defendants, they also filed an affidavit stating that by oversight they failed to include the plea in the written statement and the amendment sought for is necessary and the same be allowed in the interest of justice.

(3.) The Civil Judge has rejected the said application only on the ground that there was an admission made, by the defendants in their earlier written statement and that admission was to the benefit of the plaintiff and therefore, the right of the plaintiff would be taken away if the amendment is allowed. In support of this reasoning, the learned Civil Judge has relied upon the decision of the Supreme Court in Modi Spg. & Wvg. Mills v. Ladha Ram & Co. (1976) 4 SCC 320=AIR 1977 SC.680